(HC) Felix v. Thompson ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO GUERRA FELIX, No. 2:21-cv-0835 TLN CKD P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PAUL THOMPSON, 15 Respondent. 16 17 Petitioner, a federal prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2241. He is housed at Federal Correctional Institution-Herlong, 19 which lies within the territorial jurisdiction of this court, and challenges the execution of his 20 sentence. 21 On October 12, 2017, petitioner pled guilty in the United States District Court for the 22 District of Wyoming to conspiracy to distribute methamphetamine. ECF No. 7-1 at 4-5 & 12. 23 On February 2, 2018, he was sentenced to 121 months imprisonment. Id. at 14. Petitioner’s 24 projected release date is August 30, 2026. ECF 7-2 at 13. 25 In his petition, petitioner seeks immediate placement in a Residential Drug Abuse 26 Program (RDAP). Respondent has filed a motion to dismiss arguing, among other things, that the 27 claim presented by petitioner is not ripe for review. For reasons which follow, the court agrees. 28 ///// 1 Respondent has provided the affidavit of Jess Pino, Correctional Programs Specialist with 2 the Federal Bureau of Prisons (BOP). According to Ms. Pino, petitioner has been “tentatively 3 approved” for RDAP, “but is not formally eligible for enrollment until he is within approximately 4 24 months of his expected release date.” ECF No. 7-2 at 2-3. Petitioner does not dispute this. 5 Petitioner argues that he should be credited with 538 days against his sentence pursuant to 6 the “First Step Act” (FSA) enacted in 2018; this would render him immediately eligible for 7 placement in a RDAP. The FSA creates a recidivism reduction program that incentivizes inmates 8 to participate in and complete programs and productive activities by, among other things, 9 awarding sentence credit. 18 U.S.C. § 3632(d)(4). 10 There are two primary problems with petitioner’s claim. First, the BOP was given two 11 years, until January 15, 2022 to “phase in” implementation of the FSA. 18 U.S.C. § 3261(h); 12 ECF No. 7-2 at ¶17. Nothing suggests that implementation has been completed early or that 13 petitioner is entitled to the application of any FSA sentence credit prior to completion. Similar 14 conclusions have been reached in several cases including Depoister v. Birkholz, Civ. No. 21-684 15 (ECT/BRT), 2021 WL 3493692 (D. Minn. July 8, 2021); Jones v. Hendrix, No. 2:20-CV-00247- 16 ERE, 2021 WL 2402196 (E.D. Ark. June 11, 2021); Fleming v. Joseph, Case No. 3:20cv5990- 17 LC-HTC, 2021 WL 1669361, at *4-6 (N.D. FL April 7, 2021); Kennedy-Robey v. FCI Pekin, 18 C/A No. 20-1371, 2021 WL 797516, at *2–4 (C.D. Ill. Mar. 2, 2021). But see Goodman v. Ortiz, 19 No. 20-7582, 2020 WL 5015613, at *6 (D. N.J. Aug. 25, 2020) (respondent did not contest that 20 FSA credits had been earned, therefore court ordered them applied). 21 Second, petitioner fails to identify any “programs” or “productive activities” that he has 22 completed which qualify for sentence credit even if the BOP were required to apply such credit to 23 petitioner’s sentence before completion of the implementation of the FSA. 24 In light of the foregoing, the court will recommend that respondent’s motion to dismiss be 25 granted. In light of this recommendation, the undersigned finds it unnecessary to address the 26 remaining grounds raised in respondent’s motion to dismiss. 27 ///// 28 ///// ] Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Respondent’s motion to dismiss (ECF No. 7) be granted. 3 2. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be 4 | dismissed. 5 3. This case be closed. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties. Such a document should be captioned 10 || “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 11 | failure to file objections within the specified time may waive the right to appeal the District 12 || Court’s order. Martinez v. YIst, 951 F.2d 1153 (th Cir. 1991). 13 | Dated: November 12, 2021 / ae □□ / a Ly a 4 CAROLYN K DELANEY 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 | 4 19 felil059.fstep(2) 20 21 22 23 24 25 26 27 28